History Lounge

Shatranj ke Khilari

By Asiddababa and Beelzebubbles

It’s a bit of a drag getting back to work from a long weekend sometimes, so we thought you might like a little something special on Monday morning!

This is the second poster from Baal-Koni Productions, images that bring legal history alive by referencing movies and other popular culture. (Click here to see the first poster, in case you missed it.)

If you haven’t got the hang of how these work yet, here’s the deal:

Asiddababa and Beelzebubbles, the deviant minds behind Baal-Koni, create these posters to depict a particular moment in Indian legal history. The previous poster was a representation of the facts surrounding the famous case of K.M. Nanavati v. State of Maharashtra, 1962 SCR Supl. (1) 567. They used key facts from the case, and created a poster which referenced the popular Hindi movie, Pati Patni aur Woh.

This time around, you get to guess which case or incident in legal history this poster represents. Try guessing what the poster is about in the comments below. The best guess – the one which explains the poster and its link to Indian legal history most accurately and completely, wins a prize – a Rs.250/- gift voucher on!

Now take a look, and post your guesses in the comments below! Best of luck!

Image published under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 India License.
Image published under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 India License.

Feel free to download the image above, but if you decide to pass it on to someone, please remember to tell people you got it from!

History Supreme Court of India

Making room for truth

Satyameva Jayathe” – the phrase that is part of the National Emblem and placed in courtrooms, over the judges and the Bar, is an assertion and an aspiration. It comes as a matter of surprise then, that for close to six decades, our Republic entertained a charge that denied truth as a defence. The contradiction is heightened because the prohibition was with respect to a charge of criminal contempt – a power justified as necessary to protect the majesty of the court and to preserve its dignity from scurrilous onslaughts. The court would protect its majesty by invoking powers of contempt, even if such contemptuous conduct were justifiable as the truth, which was proclaimed in the interests of public good. While common law courts elsewhere had recognised truth to be a defence, the courts in India chose to remain where they were.

A scene from the 1913 film, Raja Harishchandra. The image in the article banner is of the painting Harishchandra by Raja Ravi Varma.
A scene from the 1913 film, Raja Harishchandra. The image in the article banner is of the painting Harishchandra by Raja Ravi Varma.

Very early in its life, the Supreme Court had an opportunity to dwell on this question. In Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149, the contemnor sought to evoke the defence of truth in answer to a charge of contempt. While dismissing the plea on facts and speaking for a bench of five judges, Justice Mukherjea observed:

The article in question is a scurrilous attack on the integrity and honesty of a judicial officer. Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to the litigants who did not satisfy his dishonest demands. If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute… As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide, even if good faith can be held to be a defence at all in a proceeding for contempt.

The emphasised words ought to have paved the way for the development of the law in that direction. However, it was close to two decades before the Supreme Court dwelt on this question again. There were numerous opportunities before several high courts to take the law forward, but none materialised.

The Andhra Pradesh High Court, in Advocate General v. Sheshagiri Rao, AIR 1966 AP 167, held that in a proceeding for contempt, the truth of the offending statement was no defence. The Allahabad High Court, in G.N. Verma v. Hargovind, AIR 1975 All 52, also held that evidence to justify the allegations amounting to contempt could not be allowed. In Sher Singh v. R.P. Kapur, AIR 1968 Punj 217, a full bench of the Punjab and Haryana High Court, after making a survey of some pre-Independence judgments, held:

In not one of these cases was evidence allowed to be introduced in justification on the matters listed above on which Respondent 1 has said that evidence should have been allowed.

The position was affirmed by the Bombay High Court in V.M. Kanade v. Madhav Gadkari, 1990 CriLJ 190 and by the Andhra Pradesh High Court in Advocate General v. Rachapudi Subba Rao, (1991) 1 MLJ 1. The Kerala High Court did not stop there. In Advocate General, Kerala v. Kunchacko, 1965 KLT 871, apart from dismissing the contention that truth was a defence to a charge of contempt, it was also held that any attempt to justify the contemptuous statement or to prove its correctness by adducing evidence would itself constitute fresh contempt. The judgment was pronounced relying on a pre-Independence judgment of the Lahore High Court in K.L. Gaiba, 1942 Lah 105.

The question was put to rest by the judgment of the Supreme Court in Perspective Publications Ltd. v.The State of Maharashtra, AIR 1971 SC 221. Three judges unanimously held that truth was no defence for a charge of contempt. It was held:

It may be that truthfulness or factual correctness is a good defence in an action for libel, but in the law of contempt there are hardly any English or Indian cases in which such defence has been recognised. It is true that in the case of Bathina Ramakrishna Reddy, (1952) S.C.R 425, there was some discussion about the bona fides of the person responsible for the publication but that was apparently done to dispose of the contention, which had been raised on the point. It is quite clear that the submission made was considered on the assumption that good faith can be held to be a defence in a proceeding for contempt. The words ‘even if good faith can be held to be a defence at all in a proceeding for contempt’ show that this court did not lay down affirmatively that good faith can be set up as a defence in contempt proceedings. At any rate, this point is merely of academic interest because no attempt was made before the High Court to establish the truthfulness of the facts stated in the Article.

The decision was unfortunate on two counts. It practically ignored the tone and tenor of the decision in Ramakrishna Reddy, (supra) which the present bench held, did not lay down any absolute rule that truth was a defence. Secondly, the decision clearly ignored the trends in comparable common law jurisdictions. Though the law of England did not formally recognise such a defence, the very concept of contempt by way of scandalising the court, was becoming obsolete. The courts in New Zealand had by 1978, recognised truth as defence for contempt in Solicitor General v. Radio Avon Ltd., [1978] 1 NZLR 225. In R. v. Nicholls, (1911) 12 CLR 280, after referring to the judgment of the Privy Council in In the Matter of a Special Reference from Bahamas Islands, 1 (1893) A.C. 138, the High Court of Australia held:

It is said by Mr. Weigall that they suggest a want of impartiality, but we do not find that in them, and I am not prepared to accede to the proposition that an imputation of want of impartiality to judge is necessarily a contempt of Court. On the contrary I think that, if any Judge of this court or of any other court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the Courts in any manner likely to be brought before it, any public comment on such an utterance, if it were a fair comment would, so far from being a contempt of Court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of Libel.

It was clear that courts elsewhere were leaving more room for criticism, when it could be shown that the same was for the benefit of the public and was made in good faith.

However, the Indian law remained frozen at Perspective Publications, (supra) – which has not been overruled till date. Finally, in Subramanian Swamy v. Rama Krishna Hegde, (2000) 10 SCC 331, the question was referred to a Constitution Bench, and it is still pending consideration. Meanwhile, the law in Perspective Publications continues to hold good.

It then took legislative initiative in 2006 for a change in the law. Parliament passed Act 6 of 2006, which amended Section 13 of the Contempt of Courts Act, 1971, by way of introducing the new sub-section (b), which reads:

The court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.

For once, I am enchanted enough to call this a reversal of roles. This time, the legislature stepped in to bring the law in tune with the constitutional scheme of fundamental rights, and also with the trends in the common law courts elsewhere. Unfortunately, it took 56 years for a democratic country to recognise truth as a defence for contempt – when we proclaim and state with pride “Satyameva Jayathe”.

The amendment now opens a new right for an alleged contemnor to lead evidence in support of his acts or statements. This is to have serious implications on the limits of criticism that can be levelled against the courts and individual judges. Anyone who has evidence to give can now indulge in criticism. The significance of the amendment is apparent with Mr. Prashanth Bhushan filing a supplementary affidavit detailing the charges of corruption against some of the former chief justices and with the legendary Mr. Shanthi Bhushan joining in.

The real effect of the amendment is that it now compels courts to accommodate criticism. It allows a citizen to criticise the judiciary without fear of punishment for contempt, where he has materials in his possession to show that such criticism is justified. The Supreme Court is yet to deal with a case that squarely rests itself on the amended section 13. However, signs of change are already visible. In a judgment dated 13/8/2010 in Indirect Tax Practitioners Association v. R.K. Jain, Contempt Petitions (Crl.) 9/2009 and 15/97, while dealing with a case of contempt by way of scandalising the court, the Supreme Court observed:

The matter deserves to be examined from another angle. The substituted Section 13 represents an important legislative recognition of one of the fundamentals of our value system i.e. truth. The amended section enables the Court to permit justification by truth as a valid defence in any contempt proceeding if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide. In our view, if a speech or article, editorial, etc. contains something which appears to be contemptuous and this Court or the High Court is called upon to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, the truth should ordinarily be allowed as a defence unless the Court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scandalise the court or is an interference with the administration of justice.” (para 22)

Therefore, the courts have now been called upon to devise a new standard – one that balances the undoubted requirement of protecting the majesty and dignity of the court, and the enlarged right of criticism, which citizens now enjoy. With more room now left for responsible criticism, it is perhaps a reminder to citizens (and the Bar) that silence is not an option in a democracy. The question of what benchmark to set was answered long ago. In his inimitable style, Lord Denning had said in R. v. Commissioner of Police Ex. p. Blackburn, [1968] 2 All E.R., 319:

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor we will use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the Broadcast, to make fair comment, even outspoken comment, on matters of public interest.

The majesty and the dignity of the court is no end in itself. Like the other branches of the government, it has to be left open to public criticism and scrutiny – the sine qua non for any lasting democratic institution that is to inspire public confidence.

(Mahesh Menon is an advocate at the Kerala High Court.)






History Lounge

“No man is more adroit in presenting his case” – a reflection on M.A. Jinnah: Part 1

Mohammad Ali Jinnah evokes strong responses in South Asia, and has been cast in a multitude of roles depending on which side of the political line he is viewed from – a master negotiator, a charismatic leader, a cunning politician, a secular liberal, and a conservative reactionary. Few, however, see him as a lawyer, his primary professional training that helped launch his career in public life and shaped both, his political career, and his ideological vision.

Lawyers of course, overwhelmingly dominate the galaxy of political leaders in colonial India. This was partly structural. Professional and middle classes have always played a significant role in republican movements. In British India, law, unlike medicine or engineering, was the only profession that could be practiced without being employed by the colonial government. Jinnah is unique in being amongst the handful of lawyers who became equally successful in both their fields.

A young Jinnah in traditional attire.
A young Jinnah in traditional attire.

Jinnah was born into a Gujarati Khoja Muslim family engaged in trade in Karachi. As a successful trader in British India, Jinnah’s father realised that they had to forge closer links with British traders. It was to learn trade that Jinnah was sent to London. At the age of 15, he began a three-year apprenticeship with the London office of the Graham’s Shipping and Trading Company, a firm that specialised in trading in textiles and port wine. The minutiae of trade did not interest Jinnah, so within a few months of reaching England, he enrolled instead at the Inns of Court to train as a barrister. An apocryphal story suggests that his choice of Lincoln’s Inn was guided by the fact that it listed the Prophet Muhammad’s name over its doors among a list of the world’s greatest lawgivers. Jinnah’s training was purely vocational: he did not have a college education, but he passed his Bar with flying colours, graduating at the age of 19 as the youngest Indian barrister of that time.

From liit's photostream, Flickr. Original at:
From liit’s photostream, Flickr. Original at:

Jinnah returned to Bombay to begin practice at the Bombay Bar on August 24, 1896. The choice of Bombay, instead of his hometown Karachi, was not surprising. Bombay was the leading city of colonial India: it was liberal and cosmopolitan, but perhaps most importantly, was the business capital of India and therefore, the centre of commercial litigation.

Unusually for a lawyer of that period, Jinnah did not begin as a pupil to someone else but started an independent practice. Indian barristers had a hard time building a practice in India, the Indian trained vakils were often hostile and litigants were indifferent to the ‘foreign qualification’. Contrary to popular perception, most Indian law students passed their exams with the help of coaches, and had a limited command over English. While they were versed in English law and procedure, they knew little about the workings of the Indian Penal Code. Moreover, much of the commercial practice was controlled by a monopoly of British solicitor firms, who had their own network of barristers.

Like today, most young lawyers in the 19th century relied on networks of family and kin to get cases. Belonging to a commercial family, it was not surprising that Jinnah’s first case came from home. At the age of 22, he represented his uncle, Ganji Walji, a Khoja merchant who another Khoja merchant had sued for the recovery of Rs.6,790/- due as interest. This litigation, when Jinnah stepped in, was ruining his father’s business.

He did find mentors in Sir Pherozeshah Mehta, a Parsi leading lawyer, and Mr. McPherson, the Advocate General of the state, both of whom allowed Jinnah to access their respective library. McPherson sought to help out a struggling barrister by nominating him to the lower judiciary. In 1900, Jinnah was appointed Third Presidency Magistrate for Bombay, a position that paid Rs.1,500/- a month, and which placed him among a handful of Indians who wielded tremendous executive power and influence. Six months after being appointed, however, Jinnah declined to continue in the position.

While he had built his practice as a civil and commercial lawyer, it was in the period following the Magistracy that he began appearing in criminal cases, often engaged by the government. Perhaps the most famous of his early cases was the murder of a Hindu seer, Sayaji Baba, by an ‘alleged lunatic’. Jinnah assisted the prosecution in proving that the accused held a grudge against the victim before the murder and thus, despite the appearance of lunacy, committed premeditated murder.

Jinnah’s career as a public advocate bloomed after he appeared as a lawyer in the ‘Caucus’ case. The case dealt with the interference of the government in the election of local judges to the Bombay Municipal CouncilThe Indian Councils Act had introduced limited self-government in municipalities and half the seats of the Corporation could be contested from a limited electorate of 12,000 taxpayers. The other half consisted of nominated officials. The ‘elected’ wing of the Corporation was dominated by moderate Congress politicians, including Jinnah’s mentor Pherozeshah Mehta. In 1907 the ‘caucus’ of nominated officials connived with the government and arranged the defeat of Congressmen like Mehta. Surprisingly, Mehta, a distinguished barrister himself, hired Jinnah to plead his election petition. While Jinnah won only a partial victory (Mehta was declared elected, but many of the charges against the government were not accepted), the case made Jinnah nationally famous. This was the first time the colonial government was accused of rigging elections before its own courts, and the proceedings were extensively covered in both, the English and vernacular press. This case perhaps exemplified Jinnah’s early politics, exposing the British regime’s faults and contradictions through the constitutional framework of British rule.

Compared with his contemporaries, like Gandhi, Jinnah spent a relatively short period as a ‘briefless barrister’. His eloquent speaking style and incisive arguments helped his practice grow. As Frank Moraes was to describe his courtroom manner in later years, “Few lawyers command a more attentive audience. No man is more adroit in presenting his case. If to achieve the maximum result with the minimum effort is the hallmark of artistry, Jinnah is an artist of the craft. He likes to get down to the bare bones of the brief; in stating the essentials of his case, his manner is masterly. The drab courtroom acquires an atmosphere as he speaks. Juniors crane their necks to follow every movement of this tall, well groomed figure, senior counsels listen closely; the Judge is all attention.

Jinnah’s public prominence grew in 1916, when he appeared as the defence lawyer for Bal Gangadhar Tilak in a sedition case. Tilak had previously been convicted for sedition and had spent time in prison. Jinnah was unsuccessful in securing Tilak’s release in the District Court of Poona, but was able to have the conviction overturned at the Bombay High Court. His argument was twofold: firstly, he argued that Indians as British citizens were entitled to criticise the bureaucracy and they owed loyalty to the British crown and not the government of India; secondly, the C.I.D. had translated Tilak’s Marathi speeches incorrectly, and the English translation wrongly gave the impression of sedition. The case turned on the nuances of Marathi, a language Jinnah was unfamiliar with, but after careful study and briefing, he ably led the cross-examination of expert witnesses. Incidentally, Jinah had prepared the line of defence in this case, and the adoption of this line was a condition for this accepting the case. While presenting his bail application in 1908, Jinnah had reluctantly refused to defend Tilak in his first sedition case because of Tilak’s insistence of dictating his own line of defence.

Jinnah engaged a number of what could be termed ‘free speech’ cases, challenging the draconian press laws that were enacted during the First World War. The most prominent of these was his defence of the Bombay Chronicle, a nationalist English language daily. Jinnah, as a classical liberal lawyer, often spoke up for civil liberties, most famously attacking the colonial government in the Central Assembly over the illegality of Bhagat Singh’s trial. Since Bhagat Singh and his co-accused had refused to cooperate with the prosecution, a special ordinance was promulgated, which permitted the trial in absentia. Jinnah’s scathing attack on the government turned on the harm caused to the rule of law by this ordinance. He argued, “I say that no judge who has an iota of judicial mind or a sense of justice can ever be a party to a trial of that character and pass the sentence of death without a shudder and a pang of conscience. This is a farce which you propose to enact”. The law he pointed out failed to meet the standards that British common law demanded. Even at his most emphatic, Jinnah’s arguments were framed in legal terms.

(Rohit De is a scholar of legal history.)